45 posts from September 2011

09/30/2011

Prompted by the killing of Anwar al-Awlaki in a U.S. drone strike in Yemen, NRO has re-posted last year’s debate between Kevin Williamson and Andrew McCarthy on the legality of targeting al-Awlaki, a U.S. citizen. There have been a number of good analyses posted today as well – for opposing sides, here’s Jack Goldsmith in the New York Times and Glenn Greenwald at Salon. The Williamson/McCarthy exchange is notable, though, in that both arguments rest to an extent on the Constitution’s original meaning.

They are both strong arguments, deserving to be read in full. But I think both are a little bit incomplete. For me, the originalist analysis turns on two exceptionally hard questions: first, whether “war” could be conducted against non-sovereign actors, and second, whether the due process clause applied abroad. Here’s the way I would approach it (with the caution that these are tentative thoughts without firm conclusions).

As Williamson's essay recognizes, the key question is whether the killing took place in a wartime situation. The President has Article II power to fight a constitutional war, no doubt including power to kill the enemy, an essential part of warfare in the eighteenth century. That power would appear to extend to U.S. citizens who join the enemy, as nothing in the Constitution seems to immunize them. While Williamson and others invoke the due process clause, there’s no historical reason to think that the clause offers protection to enemies in wartime. As a matter of eighteenth century practice, someone manifestly a wartime enemy could be killed, period. (The ordinary conduct of war is the central foundation of Jack Goldsmith’s NYT defense of the killing, noted above, although he doesn’t pitch it in originalist terms.) To avoid this conclusion, Williamson argues that the “war on terrorism” is metaphorical only, not a real war triggering real war powers; it’s really a law enforcement operation, and in a law enforcement operation the Constitution (absent exigent circumstances) does not permit targets to be killed rather than captured and tried.

How should this issue be approached from an originalist perspective? To be sure, Congress in enacting the post-9/11 Authorization for Use of Military Force (AUMF) appeared to treat the issue as a warlike situation, and the executive branch has consistently called it a war. But the executive can’t make the "war on terror" a war just by calling it a war, any more than the executive can make the Libya intervention not a war by calling it not a war. It seems that the correct originalist question is whether “war” (and the powers that went with it) in the eighteenth century encompassed military actions against non-state actors like al-Qaeda and al-Awlaki’s affiliate al-Qaeda in the Arabian Peninsula (AQAP) -- especially actions against non-state actors that don’t even claim sovereign status, in contrast to the Taliban in Afghanistan.

As an original matter, the question of whether war could exist against non-sovereign entities is not clear cut. Here’s what I wrote on that subject a while back (Univ. of Chicago Law Review, Vol. 69, p. 1612 n.254 (2002)):

One question that seems difficult to answer on the basis of eighteenth-century sources is whether “war” meant only contentions between sovereigns, or whether sovereign force on one side was sufficient. [Samuel] Johnson’s dictionary definition seems to require sovereign force only on one side[:] … “War may be defined [as] the exercise of violence under sovereign command.” Blackstone spoke of “war” against pirates, who were generally not representatives of sovereign entities. … But other authorities thought that the term required two contending sovereigns. [Jean Jacques] Burlamaqui [wrote] that “[c]ommon use has restrained the word war to that, carried on between sovereign powers.” [Christian] Wolff … stat[ed] that “public war is war “waged between nations, or by those leaders who have the supreme sovereignty.” Richard Lee said that war is “a contest between independent sovereigns” but defined “independent sovereigns” to mean “nations, or private men, where there is no community.” … Without intending to be definitive, my view is that the best eighteenth century meaning of “war” would generally have connoted an armed struggle between sovereigns, but likely would have included contests with quasi-sovereign entities such as pirates.

Despite debate in ensuing years about the status of our conflict with al-Qaeda (and AQAP), I’m not aware that scholarship on eighteenth century non-sovereign warfare has advanced much beyond the little I wrote then. On balance, the conclusion still seems right to me, not least because the English sources (chiefly Blackstone and Johnson) seem to understand sovereign versus non-sovereign (or at least quasi-sovereign) conflict as war, whereas the stricter definition is found in European writers such as Burlamaqui and Wolff. Other things being equal, the English writers more likely influenced the framers’ understanding. Further, the founding generation clearly thought conflicts with Native American tribes were “wars” governed by the Constitution’s war powers, even though the tribes may not have been regarded at the time as fully sovereign. Still, as it stands this is fairly weak evidence.

Let’s assume, though, that Williamson is right that operations against al-Qaeda or AQAP aren’t war in the constitutional sense. It’s not clear that he necessarily prevails. The question becomes whether the due process clause is extraterritorial. Here’s how I get to that conclusion.

(1) The President generally can’t order the killing of people within the U.S. because (a) that’s (usually) contrary to domestic law, and the President can’t alter domestic law (see Youngstown Sheet & Tube Co. v. Sawyer, where the Court reached a parallel conclusion barring seizure of private property); and (b) in any event the Fifth Amendment prevents deprivation of “life” without due process of law, a provision among other things mindful of abusive kings killing their domestic enemies. (The situation of a war actually taking place in the U.S., like the Civil War, would of course be different).

(2) The President also can’t order killings abroad absent the consent of the territorial sovereign, because those would be acts of war reserved to Congress by the declare war clause. But here (apparently) we had consent of the territorial sovereign, Yemen. Absent an express limitation elsewhere in the Constitution, the President likely has the power to act from Article II, Section 1’s grant of “executive Power,” which (I’ve argued) includes a general residual power over foreign affairs. (And in any event the President can claim authorization from the AUMF, though there’s some question whether the AUMF covers AQAP).

(3) So the question is whether anything limits the President’s ability to use lethal military force abroad, short of war and with the consent of the territorial sovereign. It can’t be (1)(a) above, because domestic law doesn’t apply abroad. A limit might arise from international law, but I’ll leave that aside as Williamson doesn’t rely on it even indirectly. It could be (1)(b), though – if the due process clause applies abroad. In the nineteenth century the view was that the Constitution generally was not extraterritorial. But I’m not aware of scholarship that satisfactorily links that view to the eighteenth century.

It’s true that in the founding era statutes generally weren’t extraterritorial. But that rule had an exception for laws governing a nation’s own citizens. Moreover, the Constitution is a bit different from a statute, in that it’s a limit on government rather than a limit on private parties. It’s not clear that the founders wouldn’t have wanted to limit the government’s actions abroad. Indeed, many of the Constitution’s structural provisions assign authority over extraterritorial actions such as making treaties and engaging in war.

It’s also possible that the Constitution applies abroad only to protect U.S. citizens. Much has been made of the fact that al-Awlaki was a U.S. citizen (for example, in Greenwald’s Salon article noted above). But it seems assumed, rather than proved, that this matters. Certainly, it seems a reasonable assumption. But originalism would demand that it rest on more than apparent modern reasonableness. In particular, a central inquiry would be whether the English Bill of Rights was understood to apply to English citizens outside English territory.

I confess I don’t know the answer. Thus this post is less about conclusions and more about questions. It’s surprising that 10 years after 9/11 we don’t have more satisfactory and well-known originalist scholarship addressing two core questions: whether the eighteenth-century understanding of warfare included conflicts with non-state actors and to what extent the Constitution (especially the Bill of Rights) was thought to apply abroad. Perhaps it's out there, and I just don’t know about it. In that case, please let me know.

Mike Ramsey notes Stephen Feldman's review of Gary McDowell's book on originalism. I haven't read McDowell's book, but the review is a good example of the convention non-originalist view of originalism. It is a catalog of various criticism of originalism. As an originalist, I would say that the last generation has done much to rebut and refute these criticisms. So take a look at Feldman's review, but do realize that originalists have responses to these points.

09/28/2011

In Rodgers' intellectual history of the last quarter of the twentieth century, originalism apparently plays a surprisingly prominent role (albeit one some may find puzzling). In the review's description:

Rodgers has an almost subversive account of originalism. It was, Rodgers argues, “Constitutional conservatism’s flirtation with timelessness.” (242) For Rodgers, originalism, despite its practitioners’ excavation of historical sources and efforts to divine the historical meaning of language, has much in common with postmodern and deconstructionist theory. Rodgers contends that end-of-days fiction like Tim LaHaye’s Left Behind series laid the ground for conservatives to accept originalism, because both “short-circuit[ed] time” by “making not only the past but the future immediately accessible to the present.” (231) In this deft move, Rodgers synchronizes originalism’s promise to transport us back to 1788 or 1868 with the temporal pastiche found in postmodern aesthetics. Originalism, Rodgers observes, marked a change in conservatives’ relationship to time. Traditionally associated with Burkean incrementalism and stability, conservatives now sought to “to locate a trap door through which one could reach beyond history and find a simpler place outside of it.” (241) For conservative constitutionalists, as for transition economists, Rodgers suggests, trying to “slip[] instantly across time” in the name of stabilization could have profoundly destabilizing effects. (241)

09/26/2011

[I]t seems to me that there is little if any evidence that the broad (Hamiltonian) view of the general welfare clause was disseminated widely at the time of ratification (it was mentioned mostly in private correspondence). The states ratified the Constitution on the understanding that the powers of the federal government were limited to the powers listed in Article I, Section 8 and I've seen no evidence indicating they viewed the general welfare clause as a substantive power. I note that Madison offered a narrow view of the clause DURING ratification in one of the articles in The Federalist.

As David Currie demonstrated, the broad view of the general welfare clause was dismissed in Congress almost as soon as Hamilton offered it in his Report on Manufactures and it was viewed dismissively in Congress throughout the antebellum period. Even William Seward and Henry Clay thought it ridiculous. Until the end of the nineteenth century, Congress relied on land sale revenues when providing grants to the states (on the theory that land sale revenues were not subject to the limits of Article I, Section 8). As late as the 1920's, when Congress enacted a law providing for the purchase of crops in a futile attempt to increase crop prices (and farm income), the statute itself cited the commerce power. While there were a handful of appropriations from the 1870's to the 1920's appropriating general revenues (and not land sale receipts) to aid victims of crop failures or floods, the constitutionality of these measures received little of any discussion in Congress, in part because they were so small.

I suppose time itself had rendered the question of Social Security's constitutionality moot, but the fact remains that from an originalist perspective, that law does not come anywhere near falling within the confines of the Constitution for the simple reason that the federal government was not understood as having a broad spending power by the states when they consented to its formation.

That's very well put. I still stick with what seems to me to be the plain meaning of the text, but as I said in the initial post it may end up turning on how one weighs text against other evidence.

Proponents of New Originalism propose that their modifications solve the indeterminacy and predictability problems inherent in early conceptions of originalism. This paper argues that excluding extrinsic evidence and relying only on the formal implications of the text merely switches one indeterminacy and predictability problem for another. Rules inherently carry implications unknown to rule writers. In the case of open-textured rules such as those in the Constitution, a broad reading can occupy whole fields of law, whereas a narrow reading can have almost no real-world effects. Because they must ignore extrinsic evidence, new originalists are almost unbound in their choice of interpretation. Thus, a new originalist critique cannot make meaningful claims about how a case should have come out. This casts serious doubt on the legitimacy of new originalism as a conservative theory of interpretation, because rule writers now have no bulwark to protect against unthinkable progressive interpretations of their rules. If rule writers cannot even predict the effects of their rules under new originalism, let alone control those effects, new originalists cannot credibly claim the predictability or legitimacy-enhancing advantages claimed by proponents of early conceptions of originalism.

I haven't read the paper as yet, but I have some doubts based on the abstract. I'm not aware of any "new originalist" (or, really, any kind of originalist) who advocates (as the abstract says) "excluding extrinsic evidence and relying only on the formal implications of the text." Somewhat overgeneralizing, "new originalism" looks to the original public meaning of the text, which is an approach much more focused on the text than prior iterations. And within "new originalism" there is a range of views about how the meaning that appears from the words (giving them what appears to be their most common original definition) should be weighed relative to extrinsic evidence that people of the time actually understood the words differently. But the text-only approach seems a bit of a misconception.